Arv15 v Minister for Immigration

[2015] FCCA 1606

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1606

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal for want of appearance – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958, ss.426A, 476, 477

Applicant: ARV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1269 of 2015

Judgment of: Judge Street

Hearing date: 11 June 2015

Date of Last Submission: 11 June 2015

Delivered at: Sydney

Delivered on: 11 June 2015

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Mr Elliott
DLA Piper

ORDERS

1. The application for an extension of time be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $2300.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1269 of 2015

ARV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Tribunal made on 15 April 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The grounds in the application are as follows:

   1, I am a Chinese student and have faithful and committed Christian faith. I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.

   2, I have been actively involved in church actives. My action and religious performance has been evidenced by church elder.

   3, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

2. The respondent has moved for an immediate show-cause hearing in the context of the requirement under s.477 for an extension of time given that these proceedings were commenced on 8 May 2015 when the decision was handed down on 15 April 2014. The first respondent noted that the applicant failed to appear before the Tribunal and identified affidavit evidence in respect of the notification sent in compliance with a statutory regime by letter dated 24 February 2014 inviting the applicant to appear on 11 April 2014. The letter was sent to the applicant’s authorised address consistent with the application for review. That letter informed the applicant:

   If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it. 

3. It was in these circumstances in which the Tribunal identified the applicant’s migration history, having come to Australia in September 2006.  It was only after she unsuccessfully sought a review of a Migration Review Tribunal decision that she applied for protection on 4 June 2013, which application the delegate refused on 8 December 2013.  In relation to the hearing date which the applicant failed to attend, the Tribunal said:

   4. On 24 February 2014, the Tribunal wrote to the applicant and advised that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. It invited the applicant in accordance with s.425 to appear before it on 11 April 2014 to give evidence and present arguments relating to the issues arising in her case. The hearing notice was sent to the correspondence address that she noted on the review application. The notice stated among other things that she should contact the Tribunal as soon as possible if she is unable to attend the hearing; and that if she fails to attend this hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before the Tribunal. She made no contact with the Tribunal about the hearing. She made no contact with the Tribunal since the lodgement of the review application. She did not attend the hearing. In these circumstances, the Tribunal considered it appropriate to not take any further action to allow or enable her to appear before it relying on s.426A and decided the review on the basis of information contained in her Department of Immigration and Tribunal files.

4. It is clear that the Tribunal was entitled, consistent with s.426A, to decide the review on the basis of the information available to the Tribunal, and it cannot be said to be a decision that was one that lacks an evident and intelligible justification or is otherwise disproportionate to the circumstances identified. The Tribunal carefully identified the relevant law and set out the applicant’s claims. It found the applicant to be a national of China and assessed the claims against that country.

5. The Tribunal identified that it had taken into account the applicant’s claims and evidence from that interview but was not satisfied that they were sufficient to establish her claims. The Tribunal relevantly found:

   27. Apart from her written and oral evidence that has been discussed above, the applicant has not provided any other evidence supporting her claims.    

   28. …For these reasons the Tribunal is not satisfied that the applicant is a local church practitioner. She has not been a local church practitioner in China or in Australia. She has fabricated her claims to be a local church practitioner.

   29. As the applicant is not a local church practitioner, the Tribunal is of the opinion that she will not engage in local church activities in China  if she returns there and so she will not face persecution there for being a local church practitioner or for practicing this religion.

   30. The Tribunal finds the applicant not to be a credible witness on the basis that she has fabricated her claim to be a local church practitioner. …

   31. The Tribunal finds that there is no evidence before it showing that the applicant has an adverse profile with the Chinese authorities for any reason. 

   32. For the reasons discussed above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Refugees Convention. The Tribunal finds that the applicant does not have a well-founded fear of persecution and she does not meet the refugee criterion in s.36(2)(a).

   33. On the basis that the applicant has no adverse profile with the Chinese authorities for any reason, it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. The Tribunal does not accept that the applicant meets the complementary protection criterion in s.36(2)(aa).

   34. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). The Tribunal has no basis to find otherwise.

   35. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

6. In response to the respondent’s application, the applicant did not seek to put any submission.  The applicant’s affidavit that was filed in support of the application failed to identify any proper basis or explanation for the delay in filing the application.

7. On that basis alone, it would be one on which the Court would dismiss the application for an extension of time.  The Court has, however, had regard also to the alleged grounds identified in the application.  The Tribunal made adverse findings of fact in respect of the applicant’s claims concerning her alleged Christian faith and her alleged religious activities.  Those were findings of fact that were open to the Tribunal on the material before it.  Grounds 1 and 2 fail to identify any jurisdictional error. 

8. Ground 3 asserts that the adverse findings were unreasonable because of the absence of evidence.  It is clear that the Tribunal did take into account the applicant’s claims and evidence given at the interview and it was open to the Tribunal to come to an adverse decision, on the material before the Tribunal.  This is a case where no explanation was given to either the Tribunal or the Court in respect of the failure of the applicant to attend the hearing. 

9. It cannot be said that the adverse findings lack an evident and intelligible justification and there is no substance in relation to ground 3 of the application.  In these circumstances, there is no arguable jurisdictional error to warrant an extension of time in the interests of the administration of justice.  The application for an extension of time is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  15 June 2015